ABSTRACT
The emergence of a highly privatised digital environment driven by data has triggered a regulatory response in the EU built on public law tools, such as fundamental rights. The EU fundamental right to data protection has had a central role in scrutinising the conducts of tech companies in the EU and beyond. The application of this fundamental right has followed an expansive trajectory, aimed at offering effective and complete protection, as per the words of the Court of Justice of the EU. Yet the fundamental right driven enforcement of EU data protection rules has been highly criticised, and not without reasons. Among the several critiques, it has been observed that the breadth of data protection entails enforcement challenges, while the proceduralisation of this right de facto disguises the preservation of a business model in favour of digital actors. This chapter offers a rejoinder to these critiques by reflecting and contextualising the effectiveness crisis of data protection as an EU fundamental right. As the chapter demonstrates, the criticisms against EU data protection rules mirror a broader critical movement against fundamental right. Hence, while several critical observations against data protection are worthy of consideration, scholars and regulators should not lose sight of the gains and protections offered by data protection as a fundamental right. As a matter of fact, fundamental rights remain one of the most effective tools to counteract imbalances of powers due to their iterative engagement governance.
Gentile, Giulia, The (In)Effectiveness of EU Data Protection: A Rejoinder (April 9, 2024) in Indra Spiecker, Laura Schertel Ferreira Mendes and Ricardo Campos (eds), Digital Constitutionalism (Nomos, forthcoming).
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